HL Deb 29 June 1855 vol 139 cc293-5

wished to call the attention of the noble and learned Lord on the woolsack to a matter connected with the administration of justice in that House. Their Lordships were aware that when only two law Lords attended at the hearing of appeals, and they differed in opinion, as a matter of course the decision of the Court below was affirmed. Now, this had happened in two or three instances lately, and there was reason to believe that it had occasioned great dissatisfaction. It was to be hoped, therefore, that his noble and learned Friend would endeavour to apply a remedy to this inconvenience, which might be done by laying down a rule that, where only two law Lords sat, and a difference of opinion arose between them, the case should be adjourned for the attendance of one or more other law Lords. It might be said that the principle followed in that House was the same as that which prevailed in the inferior Courts; but there was this important difference between the two tribunals, that the judgments of the inferior Courts could be appealed against, whereas the decisions of their Lordships' House were final.


said, it was perfectly true that, on three occasions since he had had the honour of holding the Great Seal, appeals had been heard at their Lordships' bar when only himself and another law Lord were present, and when, after the question had been fully discussed before them, they could not arrive at the same conclusion; the result of which was that, according to the rules of that House, the judgment of the Court below was affirmed. That, however, he did not consider an irrational principle, amounting as it did simply to this—that, where the Court of Appeal was equally divided in opinion the previous decision of the inferior tribunal should not be disturbed. Nevertheless, understanding that satisfaction had not been given in this case, he was anxious and ready to concur in any practical mode of removing just ground of complaint. What had recently happened however, had not then occurred for the first time, for he recollected that, when the noble and learned Lord (Lord Lyndhurst) himself held the Great Seal, the law Lords had to decide one of the most important questions that could well be conceived; on which occasion three of them were of one opinion, and three of them of another, and the consequence of their being thus equally divided was, that the judgment of the Court below was maintained. Still, an alteration in the rule of the House might be desirable in this respect, although, whether it would be the wisest course to pass a standing order adjourning such appeals until a better attendance of law Lords could be secured, he would not now undertake to say.


thought this question one of great importance, and also of some difficulty. A remedy for the inconvenience that had been pointed out was clearly necessary, whether that remedy were provided by means of a standing order, or by some other arrangement between the lay Members of that House and the law Lords. The existing rule made the decision of the Court below practically the decision of that House, if there was a difference of opinion between the law Lords, when only two of their number sat; and great dissatisfaction had been created elsewhere by its operation, and particularly in Scotland. The suggestion of his noble and learned Friend (Lord Lyndhurst) might not meet the extreme case where the full number of the law Lords was exhausted without producing a preponderance of opinion on the one side or on the other; but still that was no reason why it could not be adopted in cases of a different character.


said, it appeared as though his noble and learned Friend inferred that these decisions were come to hastily; but that was not the case as far as he was concerned, for he had always acted after deliberation and conference with his noble and learned Friend from whom he differed.


said, such an arrangement as that proposed could not be made a standing order of the House, because although the House left the decision of appeals to the law Lords, yet as it did not recognise their jurisdiction alone, it was impossible to make such a standing order consistently with the privileges of the House. The best way would be, when the law Lords differed, that no judgment should be given, but an order made that the case should be re-argued when other Peers were present.

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